Politics
DEA Judge Blasts Agency For ‘Unprecedented And Astonishing’ Defiance Of Ruling On Marijuana Rescheduling Evidence Procedures

A Drug Enforcement Administration (DEA) judge is condemning the agency over its “unprecedented and astonishing” defiance of a key directive related to evidence it is seeking to use in upcoming hearings on the Biden administration’s marijuana rescheduling proposal.
At issue is DEA’s insistence on digitally submitting tens of thousands of public comments it received in response to the proposed rule to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA) as evidence in the hearings.
At multiple points, DEA Administrative Law Judge (ALJ) John Mulrooney advised the agency that hard copies of all evidence needed to be entered by January 3, and he rejected DEA’s request for an exception to the rule. Nevertheless, DEA moved to submit the comments in compact disc form despite the “clear (and repeated) directives,” the judge said in an order on Monday.
“The Government has not supplied the tribunal with a hard copy of the lengthy proposed exhibit… which it represents as containing the Comments,” Mulrooney said. “In view of the fact that Government’s request for leave for an exception to the rules applicable to the rest of the Designated Participants was specifically denied, this action is clearly not a mistake borne of misunderstanding or inadvertence, but an action taken in deliberate defiance of specific direction.”
“Even among the numerous extraordinary and puzzling actions taken thus far by the Government during the course of this litigation, this disobedience of an unequivocal directive from the tribunal is unprecedented and astonishing,” he said.
To that end, he rejected the evidentiary exhibit and further noted that, in light of DEA’s “deliberate failure to comply with the unequivocal and repeated directive of the tribunal, the issue of sanction is herein RESERVED for a determination to be made at such time during the hearing on the merits that the proposed exhibit is offered into the record.”
Mulrooney hasn’t been shy about calling out DEA over various procedural missteps throughout this rescheduling process.
For example, last month he criticized the agency for making a critical “blunder” in its effort to issue subpoenas to force Food and Drug Administration (FDA) officials to testify in hearings—but he allowed the agency to fix the error and ultimately granted the request.
Meanwhile, DEA on Monday also asked the ALJ to reject a request to have it removed from the marijuana rescheduling hearings over allegations it opposes the reform it is supposed to be defending during the proceedings—while still declining to clarify where it actually stands on the proposal.
That came in response to a motion filed by pro-rescheduling witnesses Village Farms International, Hemp for Victory, the Connecticut Office of the Cannabis Ombudsman, Ellen Brown and My Doc App.
Part of the pro-rescheduling participants’ motion addressed a new declaration submitted to the ALJ by a DEA official this month, wherein the agency pharmacologist seemed to question the basis of the reclassification proposal. It also alleged additional unlawful communication with an anti-rescheduling witness and questioned the agency’s rationale for selecting certain witnesses while denying others, including the state of Colorado.
The motion also alleged that there’s “additional damning evidence of ex parte and undisclosed communications has emerged,” with DEA failing to disclose nearly 100 requests to participate in the upcoming hearings, as well as “communication and coordination with at least one anti-rescheduling [designated participant], the Tennessee Bureau of Investigation.”
DEA pushed back against the claims, contending that information cited in the motion was available to the witnesses despite the suggestion that the evidence was new and reiterating that, as the ALJ previously asserted, there’s no basis to remove the agency from the proceedings.
The DEA judge rejected the cannabis groups’ earlier request to remove the agency as the proponent of the rescheduling rule, but he did seem to put weight into separate allegations that it engaged in unlawful communication with another DP, the prohibitionist group Smart Approaches to Marijuana (SAM).
Relatedly, a federal judge also recently dismissed a lawsuit seeking to compel DEA to turn over its communications with the anti-cannabis organization.
Meanwhile, Mulrooney recently denied a cannabis research company’s request to allow it to add a young medical marijuana patient and advocate as a witness in the upcoming rescheduling hearing.
Also, one of the nation’s leading marijuana industry associations asked the judge to clarify whether it will be afforded the opportunity to cross-examine DEA during the upcoming hearings on the cannabis rescheduling proposal.
Further, a coalition of health professionals that advocates for cannabis reform recently asked that the DEA judge halt future marijuana rescheduling hearings until a federal court is able to address a series of allegations they’re raising about the agency’s witness selection process.
That came on the same day the Mulrooney issued a ruling that laid out the timeline for merit-based hearings on the rescheduling proposal.
Doctors for Drug Policy Reform (D4DPR) requested that the DEA judge stay the hearings—which are currently set to commence on January 21—pending a review from the U.S. District Court for the District of Columbia Circuit. A separate organization that was also denied participation, Veterans Action Council (VAC), similarly filed a petition with the same court last month to request a review of the agency’s decision to exclude it from the proceedings.
The rescheduling proceedings have generated significant public interest. While moving marijuana to Schedule III wouldn’t federally legalize it, the reform would free up licensed cannabis businesses to take federal tax deductions and remove certain research barriers.
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In a prehearing statement submitted in November, DEA previewed the testimony its two agency witnesses plan to provide at the upcoming hearing—without clarifying where it stands on the rescheduling proposal.
While the initial preliminary hearing happened last week, the merit-based proceedings were delayed until at least early 2025 after Mulrooney notified DEA that it provided insufficient information about the 25 selected witnesses that DEA Administrator Anne Milgram submitted.
Separately, the DEA judge has also denied a request from a cannabis and psychedelics researcher to postpone the upcoming rescheduling hearing over the agency’s alleged “improper blocking” of witnesses, while arguing that the process should be halted at least until President-elect Donald Trump’s administration comes into power so it can review the rulemaking.
Mulrooney also rejected a veterans group’s petition to participate in the rescheduling hearing, which the organization called a “travesty of justice” that excludes key voices that would be affected by the potential policy change. That group has asked the U.S. Court of Appeals for the D.C. Circuit to intervene on its behalf.
For what it’s worth, Vice President Kamala Harris said recently that part of the reason for the delay in the administration’s marijuana rescheduling effort is federal bureaucracy that “slows things down,” including at DEA.
In March, Harris also expressed some frustration with the bureaucratic process of rescheduling marijuana, prior to DOJ’s formal recommendation, calling on DEA to expediently finish the job.
While the Biden–Harris administration facilitated the review that led to the DOJ rescheduling proposal, Trump has also voiced support for the reform.
Read the DEA judge’s order below:
Marijuana Rescheduling_Order Regarding Government’s Proposed Exhibit by Marijuana Moment on Scribd
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Photo courtesy of Chris Wallis // Side Pocket Images.